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Don’t Treat Consumers Like Criminals

WASHINGTON — THE House Judiciary Committee will hold a much-needed hearing today on cellphone unlocking. At stake is whether wireless consumers can be prosecuted for what, not long ago, was considered a routine practice.

Before 2012, if you bought and paid for a cellphone, the government didn’t prevent you from choosing your wireless carrier. Once your contract with your original carrier ended, you were free to “unlock” your phone — to make it usable on another wireless network — and switch to another carrier in order to get lower prices, faster service or better coverage.

No longer. Last October, the Library of Congress, which oversees the United States Copyright Office, decided that when a consumer unlocks her cellphone — a process that can be as straightforward as entering a code on the keypad — she may be violating the Digital Millennium Copyright Act of 1998. Essentially, the millions of Americans who try to take their phones with them when they switch wireless carriers are suddenly in the cross hairs of American copyright law. These consumers now face the prospect of harsh fines and even jail time.

The Library’s decision was based on a desire to protect the intellectual property rights to the software that “locks” a cellphone to a particular network — software for which each cellphone owner could be considered a licensee. The Library also noted that some wireless carriers allow unlocking and that unlocked phones are often available from third-party providers.

But the decision — a heavy-handed and unnecessary intervention into the private marketplace — is a classic example of government overreach. It allows a wireless carrier to sue, under copyright law, a consumer who unlocks her phone even if that consumer has paid off her two-year contract with the carrier or never had a contract in the first place.

This isn’t what the 1998 act was meant to do. That law was intended to prevent piracy. For example, it prohibits consumers from getting rid of digital protections to illicitly distribute a copyrighted song or movie on the Internet.

No one seriously believes that unlocking a cellphone to switch carriers is equivalent to piracy. Yet the Library’s decision places the two on the same plane, with the same civil and criminal penalties. This isn’t consistent with the spirit of the law, with the free market or with common sense.

So what’s the right response? To borrow the tag line from AT&T’s new commercials, “It’s not complicated.” Let’s go back to the free market. Let’s allow contract law — not copyright or criminal law — to govern the relationship between consumers and wireless carriers.

The free market for mobile devices and wireless service has been a dramatic success. As the Federal Communications Commission reported earlier this year, prices in the wireless market are down, and investment is up. More manufacturers are developing innovative mobile devices, and consumers are reaping the benefits.

Wireless carriers certainly don’t need the federal government’s help. Long before the Library’s decision, they recognized that not many consumers wanted to spend upward of $600 on a new smartphone. So they have given consumers another option: Sign a two-year contract, and they’ll knock hundreds of dollars off the phone’s price. For consumers who don’t want to think about switching carriers every few months, that’s a great deal. And no surprise, millions of consumers (including me) have bought cellphones this way.

But in a free market, once a consumer’s contract expires, she should be able to take her device to another carrier. The government shouldn’t tilt the scales with legal penalties; it should leave the mobile marketplace alone.

To restore a free market that benefits consumers, we should amend the 1998 act to allow consumers to take their mobile devices from one carrier to another without fear of criminal prosecution or civil fines. We should also make clear that those who help consumers unlock their phones and tablets won’t be prosecuted either. And we should reiterate that contracts remain valid and enforceable. These fixes should be permanent, so that consumers, developers and wireless carriers don’t have to worry about the law shifting on a whim.

In making these fixes, we should also avoid government overreach in the other direction. Some people want to leverage this controversy into something more than it is. They want the F.C.C. to take aggressive action — to void wireless-service contracts and to impose sweeping mandates on wireless carriers. Others want to overhaul copyright law entirely.

We should leave those larger debates for another day. More than 100,000 Americans petitioned the White House about the narrow issue of cellphone unlocking. The Obama administration, to its credit, has called for a narrow legislative solution. Congress should follow suit by taking the hammer of copyright law out of the government’s toolbox. Let the free market for wireless services and devices flourish. If the government gets out of the way, the wireless marketplace will continue to be an American success story.

Ajit V. Pai is a commissioner of the Federal Communications Commission.

A version of this op-ed appears in print on June 6, 2013, on page A23 of the New York edition with the headline: Don’t Treat Consumers Like Criminals. Today's Paper|Subscribe